P. v. Lucky

Filed 4/18/06 P. v. Lucky CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Janet Kintner, Judge. Affirmed.

A jury convicted Douglas Lucky of one count of the sale or furnishing of a controlled substance (cocaine base) and one count of possession of cocaine base for sale (Health & Saf. Code, §§ 11352, subd. (a), 11351.5). Lucky contends the court prejudicially erred by failing to instruct the jury with the circumstantial evidence instruction contained in CALJIC No. 2.02. Assuming there was instructional error, we hold the error was harmless. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On June 4, 2004, at about 5:00 p.m., Officer David Hall was working undercover in a "buy-bust" operation in an alley by the 1600 block of Logan Avenue, an area known for narcotics activity. Officer Hall approached a man later identified as Lucky and asked if he "had a 20," street terminology for $20 worth of a controlled substance. Lucky responded he did not have a "20," but if Officer Hall waited, some would "show up soon." Officer Hall and Lucky sat down to wait. Lucky twice asked Officer Hall if he was a police officer; Officer Hall responded he was not. Lucky then asked for the money to "go get the rock." Officer Hall gave Lucky four prerecorded $5 bills.

Lucky walked to the street and contacted an individual, but then returned to Officer Hall stating "he was unable to get the substance." Officer Hall remained where he and Lucky had been sitting. Officer Hall and Lucky then walked up the street together, and Lucky asked Officer Hall to wait at a bus stop. Officer Hall did so. Lucky continued walking up the street and Officer Hall lost sight of him. However, Officer Mark Saunders, another undercover officer, observed Lucky meet another man. Officer Saunders saw Lucky and the second man have a brief conversation and exchange items, although he could not see what they exchanged.

Lucky returned to the bus stop about 10 to 15 minutes after he left Officer Hall. They walked back to the alley where they first met. After they sat down, Lucky showed Officer Hall an off-white substance which was later confirmed to be cocaine base. Upon Lucky's request, Officer Hall gave Lucky his pipe. Lucky broke the cocaine base in half, gave half to Officer Hall, put the other half in the pipe, and started to light the pipe. As soon as Lucky gave Officer Hall the cocaine base, Officer Hall signaled the other police officers to arrest Lucky. As the marked police cars arrived, Officer Hall saw Lucky place the pipe between his feet.

Officer Hall opined the cocaine base Lucky gave him was a usable amount and Lucky possessed it for sale. Although the pipe Officer Hall gave Lucky was never recovered, the prosecution introduced the .09 grams of cocaine base Lucky sold Officer Hall. Additionally, the four prerecorded $5 bills Officer Hall gave Lucky were subsequently found in the possession of the man with whom Lucky exchanged items.

Jury Instructions

During the trial court's discussions with counsel regarding the jury instructions, the court stated it would give CALJIC No. 2.01, the general cautionary instruction pertaining

to circumstantial evidence,^[1] but not CALJIC No. 2.02, the more specific circumstantial

evidence cautionary instruction directed towards specific intent or mental state.^[2] Defense counsel requested the court give CALJIC No. 2.02, explaining that the important part of the defense case pertained to mental state, particularly specific intent for the possession for sale charge, and CALJIC No. 2.02 specifically addressed this concept. The court responded that defense counsel could argue based on CALJIC No. 2.02, but because the two instructions were duplicative it would only give CALJIC No. 2.01. The court stated CALJIC No. 2.01 was the proper instruction because in its view the case involved circumstantial evidence on matters in addition to specific intent or mental state.

DISCUSSION

Lucky contends the court prejudicially erred by failing to instruct the jury with CALJIC No. 2.02. He argues that specific intent or mental state was the only issue in dispute and the evidence to prove his specific intent or mental state was entirely

circumstantial. We review Lucky's challenge to the instructions de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

CALJIC No. 2.01 is a general cautionary instruction on the sufficiency of circumstantial evidence to prove guilt. (People v. Cole (2004) 33 Cal.4th 1158, 1222.) CALJIC No. 2.02 is a more specific cautionary instruction on the sufficiency of circumstantial evidence to prove guilt, directed towards the issues of specific intent or mental state. (Cole, at p. 1222.) It is proper to give CALJIC No. 2.02 if specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. (Cole, at p. 1222.) In contrast, if other elements of the offense (in addition to or apart from specific intent or mental state) rest substantially upon circumstantial evidence, then the more inclusive CALJIC No. 2.01 is the proper instruction. (Cole, at p. 1222.)

The elements of possession of cocaine base for sale are: (1) physical or constructive possession of the controlled substance; (2) knowledge of its presence; (3) knowledge of its nature as a controlled substance; (4) an amount sufficient to be used for sale or consumption as a controlled substance; and (5) possession with specific intent to sell. (People v. Johnson (1984) 158 Cal.App.3d 850, 853; People v. Parra (1999) 70 Cal.App.4th 222, 225-226; see CALJIC No. 12.01.) The elements of the sale or furnishing of cocaine base are: (1) the sale or furnishing of cocaine base; (2) knowledge of its presence; and (3) knowledge of its nature as a controlled substance. (People v. Lechlinski (1976) 60 Cal.App.3d 766, 769; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474; see CALJIC No. 12.02.)

Direct evidence proves a fact directly without need for an inference, whereas circumstantial (or indirect) evidence proves an intermediary fact from which a principal fact may be inferred. (People v. Crawford (1967) 253 Cal.App.2d 524, 529-530; see CALJIC No. 2.00.) The record shows that proof for all of the elements of the two charged offenses that did not relate to specific intent or mental state was premised primarily on direct evidence. For the offense of possession of cocaine for sale, the elements of possession and the existence of a usable amount were directly shown by Officer Hall's personal observations of Lucky's handling of the cocaine. Similarly, for the offense of sale of cocaine, Officer Hall's participation in the exchange of money for drugs provided direct evidence of the element of sale of the cocaine.

Thus, if a circumstantial evidence instruction was warranted in this case, it only pertained to the specific intent or mental state elements of the offenses; i.e., specific intent to sell (for possession with intent to sell) and knowledge of the presence and nature of the cocaine (for both offenses).^[3] To the extent Lucky's conduct or words did not overtly show his specific intent and knowledge, proof of these facts rested on inferences arising from the circumstances. In contrast, the elements unrelated to specific intent or mental state were primarily shown by direct evidence. Accordingly, assuming a circumstantial evidence instruction was required, CALJIC No. 2.02 was the proper instruction.

However, reversal is not warranted because there is no reasonable probability any instructional error affected the verdict. (People v. Bloyd (1987) 43 Cal.3d 333, 352.) CALJIC No. 2.01 includes the principles in CALJIC No. 2.02. (See People v. Cole, supra, 33 Cal.4th at p. 1222.) The courts have repeatedly found that the failure to give CALJIC No. 2.02 is harmless error when the jury was instructed with CALJIC No. 2.01. (See, e.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1142; People v. Lee (1990) 220 Cal.App.3d 320, 328; People v. DeLeon (1982) 138 Cal.App.3d 602, 607-608.) Because the court instructed the jury with CALJIC No. 2.01, the jury was properly advised about the requirements for a guilty finding based on circumstantial evidence. Further, the jury was instructed that the prosecution must prove each element of the charged offenses. Thus, the jury would have understood that if it relied on circumstantial evidence for proof of an element of an offense, it had to apply the rules set forth in CALJIC No. 2.01. Indeed, in closing arguments defense counsel argued this point to the jury, telling the jury that it must apply the circumstantial evidence rules when evaluating the issue of Lucky's specific intent to sell cocaine necessary for the charge of possession for sale. There is no reasonable probability the jury would have failed to apply the circumstantial evidence rules it received in CALJIC No. 2.01 if it relied on circumstantial evidence to establish Lucky's specific intent and knowledge.

Lucky argues that CALJIC No. 2.01 did not cure the error, positing that CALJIC No. 2.01 only applies to acts, not specific intent and mental state. This contention is incorrect. It is well established that CALJIC No. 2.01 is the correct instruction to give when the prosecution's evidence for both acts and specific intent or mental state is derived substantially from circumstantial evidence. (See, e.g., People v. Cole, supra, 33 Cal.4th at p. 1222; People v. Marshall (1996) 13 Cal.4th 799, 849; People v. Cook (1982) 135 Cal.App.3d 785, 794-795.) There is nothing in the broad language of CALJIC No. 2.01 suggesting it does not embrace specific intent and mental state.

Lucky cites People v. Crisel (1955) 137 Cal.App.2d 275 and People v. Salas (1976) 58 Cal.App.3d 460 to support his argument that the failure to give CALJIC No. 2.02 requires reversal. Both cases are inapposite. In Crisel, the appellate court failed to give any circumstantial evidence instructions (Crisel, at pp. 276-277), and in Salas the appellate court concluded the trial court gave confusing circumstantial evidence instructions (Salas, at pp. 474-475.)^[4] Neither situation is present here.

The lack of prejudice is also shown by the strength of the evidence against Lucky. The prosecution's evidence included the testimony of the police officers who observed the transaction, the cocaine base Lucky gave Officer Hall in exchange for money, copies of the prerecorded currency, and Officer Hall's opinions the cocaine base was a usable amount and Lucky possessed it for sale. Lucky's possession with specific intent to sell was shown by the fact that he did indeed sell the substance to the officer, and his knowledge of the presence and nature of the substance was shown by the fact that he personally handled it and was going to personally smoke it. Lucky did not call any witnesses to refute the prosecution's evidence. Given the compelling evidence of the

elements of the offenses, including his specific intent and knowledge, the failure to give the circumstantial evidence instruction focusing on specific intent and mental state was clearly harmless.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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Analysis and review provided by Carlsbad Apartment Manager Attorneys.

^[1] In the language of CALJIC No. 2.01, the trial court instructed the jury:

"However, a finding of guilt as to any crime may not be based on circumstantial evidence, unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of a crime, but (2) cannot be reconciled with any other rational conclusion.

"Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which the inference necessarily rests must be proved beyond a reasonable doubt.

"Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt the interpretation that points to the defendant's innocence and reject that interpretation that points to his guilt.

"If, on the other hand, one interpretation of this evidence appears to you to be reasonable, and the other interpretation unreasonable, you must accept the reasonable interpretation and reject the unreasonable interpretation."

^[2] CALJIC No. 2.02 provides:

"The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged . . . ] . . . unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion.

"Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." (CALJIC No. 2.02 (2005 ed.).)

^[3] The People argue that on the facts of this case the trial court was not required to instruct regarding circumstantial evidence. Given our holding of harmless error, we need not reach this contention.

^[4] The specific result reached in Salas was disapproved by the California Supreme Court in People v. Wolcott (1983) 34 Cal.3d 92, 109.